Warden Plastics Ltd
Terms of Trading
QD30 Issue 2 - Page 1 of 2 -1.APPLICABILITY
1.1These terms and conditions of business shall govern any contract between you and us for the provision of Goods and Services, as defined below to the exclusion of any other terms.
1.2A contract between you and us will be formed at the earliest of:
1.2.1.an instruction by you to us to commence the provision ofthe Services by instructing us to start the R&D process which instruction will be regarded as an offer for contract pursuant to these terms and which offer will be accepted by us on our written confirmation that we have commenced the R&D process; or
1.2.2.an order being placed by you with us for the supply of Goods, which offer will be deemed accepted by us if we issue our order confirmation.
2.DEFINITIONS
Deliverablesmeans the Goods and/or the Design Samples;
Deliverymeans:
- in the case of Services, the presentation of a product (either in the form of prototype or design drawings only) in accordance with the Requirements and capable of mass-productionor in the event of termination prior to the completion of the Services, the related Design Samples
- in the case of Goods, the delivery of the Goods in accordance with the provisions of clause 5.1;
DesignDocumentsmeans all drawings, designs, circuit diagrams, manufacturing instructions and all other documented technical information necessary for the manufacture of the Goods and/or arising out of the Services;
Design Samplesmeans any design samples, models, prototypes and trial production models of the Goods and/or arising out of the Services
Goodsmeans the goods capable of mass-production ordered by you from us;
Intellectual Propertymeans all patents, trade marks, copyrights and design rights and all other intellectual or industrial property rights(whether registrable or not)recorded or embodied in the Design Documents,the Design Samples and/ or the Goods or in any other work done by us for you, in each case in any part of the world and whether or not registered or registrable, for the full period and all extensions and renewals;
Minimum Volume means the amount of Goods to enable us to recoup the value of the Services and the cost of the Goods as notified by us;
Requirementsmeans the product requirements for the Goods as defined by you and confirmed by us to you in writing;
Servicesmeans the provision of research, design and development services for the design of the Goods in accordance with the Requirements; and
Toolingmeans the bespoke tooling, if any, specific to the Goods and required for their manufacture.
3.Provisions of services
3.1You acknowledge and agree that for us to be able to provide the Services youshall:
3.1.1.co-operate with us as we may reasonably require;
3.1.2.promptly provide to us such information and documentation as we may reasonably require;
3.1.3.make available to us the facilities, resources and equipment as we may reasonably require from time-to-time; and
3.1.4.instruct your staff and agents to co-operate and assist us.
3.2We may charge you for any additional reasonable costs and expenses incurred by us caused by your instructions, failure to provide instructions, or failure to comply the above.
3.3We warrant that we will use reasonable care and skill in performing the Services and to a standard which conforms to generally accepted industry standards and practices.
3.4We expressly do not warrant that any result or objective, whether stated in the Requirements or not, shall be achieved, be achievable or be attained at all.
4.Price
4.1The price quoted excludes VAT (unless otherwise stated). VAT will be charged at the rate applying at the time of delivery.
4.2Our quotations lapse after 30 days (unless otherwise stated).
4.3The price quoted excludes delivery (unless otherwise stated).
4.4Unless otherwise stated, the price quoted is an illustrative estimate only and the price charged will be our price current at the time of Delivery.
4.5The price for the Services will be charged on the time and materials basis at our hourly rates prevailing from time to time.
4.6At any time before Delivery we may adjust the price to reflect any increase in our costs of supplying the Deliverables.
5.Delivery
5.1Delivery takes place either:
5.1.1.at our premises (if you are collecting theDeliverables or arranging carriage); or
5.1.2.if we have agreed to deliver, at your premises or address specified by you (if we are arranging carriage).
5.2All Delivery times quoted are estimates only.
5.3If you accept Delivery after the estimated Delivery time, it will be on the basis that you have no claim against us for delay (including indirect or consequential loss, or increase in the price of the Deliverables).
5.4We may deliver the Goods in instalments. Each instalment is treated as a separate contract.
5.5We may decline to deliver if:
5.5.1.we believe that it would be unsafe, unlawful or unreasonably difficult to do so; or
5.5.2.the premises (or the access to them) are unsuitable for our vehicle.
5.6The cost of returnable pallets and containers will be charged to you in addition to the price of the Goods, but full credit will be given to you provided they are returned undamaged to us within three calendar months from the date of the invoice. The cost of non-returnable pallets and containers may be charged to you in addition to the price of the Goods.
6.Risk
6.1The Deliverables are at your risk from the time of Delivery.
6.2You must inspect the Deliverables on Delivery. If any Deliverables are damaged or not delivered, you must inform us in writing within 48 hours of Delivery or expected Delivery and provide full details in writing within 72 hours of Delivery or the expected Delivery time. You must give us (and any carrier) a fair chance to inspect the damaged Deliverables. You must not use or process the Deliverables. If you fail to notify us in accordance with the preceding requirements, you will not be entitled to reject the Deliverables and be deemed to have accepted the Deliverables in accordance with the contract.
7.Payment terms
7.1You are to pay usin cash or in cleared funds on placing your order, unless you have an approved credit account.
7.2If you have an approved credit account, unless otherwise agreed in writing, payment is due no later than 30 days from the end of the month in which our invoice is issued.
7.3If you fail to pay us in full on the due date we may:
7.3.1.suspend or cancel future Deliveries;
7.3.2.cancel any discount offered to you;
7.3.3.charge you interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998;
a.calculated (on a daily basis) from the date of our invoice until payment;
b.before and after any judgment (unless a court orders otherwise);
7.3.4.claim fixed sum compensation from you under s.5A of that Act to cover our credit control overhead costs; and
7.3.5.recover the cost of taking legal action to make you pay.
7.4If you have an approved credit account, we may withdraw it or reduce your credit limit or bring forward your due date for payment. We may do any of those at any time without notice.
7.5You do not have the right to set off any money you may claim from us against anything you may owe us.
7.6While you owe money to us, we have a lien on any of your property in our possession.
7.7You agree to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly including financing costs, including legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to us if any) following any breach by you of any of your obligations under these terms.
8.Payment for services
8.1The price for the Services shall be invoiced only following Delivery of the Services and in the event that you do not order from us and pay for Goods for the Minimum Volume or more within 6 months from the Delivery of the Services.
9.Title
9.1Until you pay all debts you may owe us:
9.1.1.the Tooling remains our property;
9.1.2.all Deliverables supplied by us remain our property;
9.1.3.you must store them so that they are clearly identifiable as our property;
9.1.4.you must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for us;
9.1.5.you may use anyGoods supplied and sell them in the ordinary course of your business, but not if:
a.we revoke that right (by informing you in writing); or
b.you become insolvent.
9.2You must inform us (in writing) immediately if you become or anticipate becoming insolvent.
9.3If your right to use and/or sell the Deliverables ends you must allow us to remove the Deliverables.
9.4We have your permission to enter any premises where the Deliverables may be stored:
9.4.1.at any time, to inspect them; and
9.4.2.after your right to use and sell them has ended, to remove them, using reasonable force if necessary.
9.5Despite our retention of title to the Deliverables, we have the right to take legal proceedings to recover the price of Deliverables supplied should you not pay us by the due date.
9.6You are not our agent. You have no authority to make any contract on our behalf or in our name.
10.Warranties
10.1We warrant that the Goods:
10.1.1.comply with their description on our order confirmation form; and
10.1.2.are free from material defect at the time of Delivery (as long as you comply with clause10.3).
10.2We give no other warranty (and exclude any warranty, term or condition that would otherwise be implied) as to the quality of the Deliverables or their fitness for any purpose.
10.3If you believe that we have delivered Deliverables that are defective in materials or workmanship, you must:
10.3.1.inform us in writing, with full details, as soon as reasonably practicable, but no later than 48 hours from discovery of a defect and in any event no later than 60 days fromDelivery;
10.3.2.not use or process the Deliverables;
10.3.3.allow us to investigate (we may need access to your premises and product samples);
10.3.4.return the Deliverables to us as soon as is reasonably practicable and as is agreed with us.
10.4If the Goods are found to be defective in material or workmanship (following our investigations), and you have complied with those conditions (in clause 10.3) in full, we will (at our option) replace the Goods, refund the price or re-work the Goods.
10.5We are not liable for any other loss or damage arising from the contract or the supply of Services and/orDeliverables or their use, even if we are negligent, including (as examples only):
10.5.1.direct financial loss, loss of profits or loss of use; and
10.5.2.indirect or consequential loss
10.6Our total liability to you (from one single cause) for damage to property caused by our negligence is limited to £1,000,000.
10.7Save where otherwise expressly stated, our liability is limited in damages to the price of the Deliverables and/or the Services.
10.8Nothing in these terms restricts or limits our liability for death or personal injury resulting from negligence.
10.9Nothing in these terms affects or limits our liability for fraudulent misrepresentation.
11.Specification
11.1If we prepare the Goods in accordance with your specifications, drawings or instructions, or you supply the materials, you must ensure that:
11.1.1.the specifications or instructions are accurate;
11.1.2.we receive the specifications, drawings, instructions or materials in a reasonable time to allow us to dispatch within the period named;
11.1.3.Goods prepared in accordance with those specifications or instructions will be fit for the purpose for which you intend to use them; and
11.1.4.your specifications or instructions will not result in the infringement of any intellectual property rights of a third party, or in the breach of any applicable law or regulation.
11.2We reserve the right;
11.2.1.to make any changes in the specifications of our Goods that are necessary to ensure they conform to any applicable safety or statutory requirements; and
11.2.2.to make without notice any minor modifications in our specifications we think necessary or desirable.
12.Intellectual Property
12.1All Intellectual Property in all work created by us, including those based either fully or partly on your ideas, is our sole and absolute property.
12.2You must not use any trademarks, logos or copyright or patented materials owned or controlled by us without our prior written consent.You must not use any trademarks or logos in conjunction with any Deliverables that we have supplied you except with our prior written agreement.
12.3We retain all Intellectual Property in the Design Documents and the Deliverables. Design Documents and related details are private and confidential, if we supply any of the Design Documents to you it is under the express condition that they are not reproduced (whether in 2D or 3D format) or communicated to any other person in whole or part. The information contained within the documentation cannot be used directly or indirectly in a detrimental manner against us.
12.4Subject to clause 15.1.2, unless explicitly acknowledged by us in writing otherwise, the Goods supplied by us to you are produced to a design based on our know-how and experience in the field of plastics and often pursuant to extensive research and development work. All Design Documents, Design Samples and any other designs and technical specifications of the Goods (including without limitation, the end-product suitable for mass production, as well as any preceding prototypes and earlier versions) are confidential information belonging to us, which information is to be treated subject to the strictest obligations of confidence.In particular, without limitation, any reverse engineering of theDesign Samples and/ or Goodsis regarded as breach of such confidence.
13.Export terms
13.1This clause 13of these terms applies (except to the extent that it is inconsistent with any written agreement between us) where we supply the Deliverables over an international border or overseas.
13.2The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the contract is made apply to exports, but these terms prevail to the extent that there is any inconsistency.
13.3Unless otherwise agreed, the Deliverables are supplied ex works our place of manufacture.
13.4Where the Goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
13.5You are responsible for arranging testing and inspection of the Deliverables at our premises before shipment (unless otherwise agreed). We are not liable for any defect in the Deliverables which would be apparent on inspection unless a claim is made before shipment. We are not liable for any damage during transit.
13.6We are not liable for death or personal injury arising from the use of the Deliverables delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).
14.Cancellation and Termination
14.1You may not cancel any order unless we agree in writing (and clause 14.2 then applies).
14.2If an order is cancelled (for any reason) you are then to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the order.
14.3We may suspend or cancel an order, if:
14.3.1.you fail to pay us any money when due (under the order or otherwise);
14.3.2.you become insolvent;
14.3.3.you fail to honour your obligations under these terms.
14.4Either party may terminate any agreement governed by these terms upon immediate written notice if the other becomes bankrupt, insolvent or in the reasonable opinion of the other party, is in danger of becoming bankrupt or insolvent, or is in material breach of these terms and (if capable of remedy) that breach has not been remedied within 30 days of notice being served on the party requiring it to remedy it.
14.5Any rights accrued by either party prior to termination shall survive termination
15.effects of termination
15.1On termination:
15.1.1.all amounts due from you to us on any account whatsoever shall immediately become due and payable in full;
15.1.2.following receipt of full payment of all outstanding monies due from you, we willgive Delivery in accordance with clause 5.1.1 above, of:
a.anyDesign Samples, if any in existence at the time of termination; and
b.the Tooling.
16.Waiver and variations
16.1No failure of delay by us in enforcing any of our rights shall constitute a waiver of any of our rights. No waiver shall be effective unless in writing signed by us.
16.2No variation of these terms is binding unless:
16.2.1.made (or recorded) in writing;
16.2.2.signed on behalf of each party; and
16.2.3.expressly stating an intention to vary these terms.
16.3All orders that you place with us will be on these terms (or any that we may issue to replace them). By placing an order with us, you are expressly waiving any terms you may have to the extent that they are inconsistent with our terms.
17.Force majeure
17.1If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of circumstances beyond our control, we may cancel or suspend any of our obligations to you, without liability.
17.2Examples of those circumstances include act of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes and difficulty in obtaining supplies.
18.General
18.1English law is applicable to any contract made under these terms. The English courts have non-exclusive jurisdiction.
18.2If you are more than one person, each of you has joint and several obligations under these terms.
18.3If any of these terms are unenforceable as drafted:
18.3.1.it will not affect the enforceability of any other of these terms; and
18.3.2.if it would be enforceable if amended, it will be treated as so amended.
18.4We may treat you as insolvent if:
18.4.1.you are unable to pay your debts as they fall due; or
18.4.2.you (or any item of your property) become the subject of:
a.any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy);
b.any application or proposal for any formal insolvency procedure; or
c.any application, procedure or proposal overseas with similar effect or purpose.
18.5All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between us and you should not rely on them in entering into any contract with us.
18.6Any notice by either of us which is to be served under these terms may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or principal place of business. All such notices must be signed.